Citation Nr: 1323935 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 12-05 424 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a compensable initial rating for pes planus with degenerative changes of the right foot prior to October 8, 2012, and in excess of 30 percent from that date. 2. Entitlement to a compensable initial rating for hallux valgus of the right foot prior to October 8, 2012, and in excess of 10 percent from that date. 3. Entitlement to a compensable initial rating for hammer toes of digits two, there, and four of the right foot. 4. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) due to the Veteran's service connected foot disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from to January 1956 to March 1958. This case was previously before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The case was remanded by the Board in January 2013 and is now ready for appellate review. Pursuant to development requested in this remand, the rating for pes planus with degenerative changes of the right foot was increased from a noncompensable rating to 30 percent effective from October 8, 2012, and the rating for hallux valgus of the right foot was increased to 10 percent, also effective from October 8, 2012, by a May 2013 rating decision. The Veteran remains in disagreement with the ratings assigned for these disabilities despite these rating increases and as they were not assigned effective from the date of the claim for increase but from October 8, 2012, there is for consideration, as the issues are listed on the title page, entitlement to a compensable initial rating for pes planus with degenerative changes of the right foot prior to October 8, 2012, and in excess of 30 percent from that date and entitlement to a compensable initial rating for hallux valgus of the right foot prior to October 8, 2012, and in excess of 10 percent from that date. AB v. Brown, 6 Vet. App. 35 (1993). In November 2012, the Veteran was afforded a videoconference hearing pursuant to the provisions of 38 U.S.C.A. § 7107(e) (West 2002). During this hearing, the undersigned Veterans Law Judge was located in Washington, D.C., and the Veteran was located at the RO. A transcript of this hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). For the reason explained below, the Board has expanded the appeal (as reflected on the title page) to include a claim for a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Prior to October 8, 2012, pes planus with degenerative changes of the right foot was manifested by no more than mild disability. 2. As entitlement to a rating in excess of 30 percent for flatfeet under the Ratings Schedule requires bilateral involvement and the service connected pes planus disability is limited to the right foot, a schedular rating in excess of 30 percent for pes planus with degenerative changes of the right foot from October 8, 2012, cannot be assigned. 3. Prior to October 8, 2012, hallux valgus of the right foot was not shown to be manifested by severe disability equivalent to what would result from amputation of the great toe; as a rating in excess of 10 percent for unilateral hallux valgus may not be assigned under the Ratings Schedule, a rating in excess of 10 percent for hallux valgus of the right foot from October 8, 2012, may not be assigned. 4. For the entire appeal period, hammer toes have only involved digits two, there, and four of the right foot and not all the toes of the right foot. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for pes planus with degenerative changes of the right foot prior to October 8, 2012, and in excess of 30 percent from that date are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276 (2012). 2. The criteria for a compensable initial rating for hallux valgus of the right foot prior to October 8, 2012, and in excess of 10 percent from that date are not met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5280 (2012). 3. The criteria for entitlement to a compensable initial rating for hammer toes of digits two, there, and four of the right foot are not met at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5282 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). This notice must be provided prior to an initial RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). \ Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009). Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran's increased rating claims arise from an appeal of the initial evaluations for the disabilities at issue following the grants of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under the VCAA as to the issues adjudicated herein. VA's duty to assist the Veteran has also been satisfied in this case. 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3). Surgeon General's office reports (the Veteran's service treatment reports are presumed to have been destroyed in a 1973 fire at the National Personnel Records Center) and private medical records have been obtained, as have reports from VA medical examinations, most recently from one conducted in February 2013 with an addendum completed in May 2013 by the examiner who conducted this examination. Taken together, the examinations that have been provided to the Veteran are adequate because they contain a history obtained from the Veteran and thorough clinical findings relevant to the applicable rating criteria for the foot disabilities at issue. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) (2012) requires that any Veterans Law Judge who chairs a hearing fulfill two duties to comply with the VCAA. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the November 2012 hearing, the undersigned Veterans Law Judge adequately explained the claims on appeal and suggested evidence that may support these claims. In this regard, and pursuant to an inquiry from the undersigned as to the existence of additional pertinent treatment reports, the record was held open for 30 days following this hearing to allow the Veteran to submit private treatment records. The Board accordingly concludes that the notice requirements under Bryant were effectively satisfied. To the extent any such notice may have been inadequate, this was effectively cured both by actual knowledge as evidenced by statements and questions of the Veteran's authorized representative at the hearing, as well as by the Board providing such explanation of the issues and suggesting submission of evidence in the subsequent remand the Board issued to develop this claim. As indicated, the appeal was remanded by the Board in January 2013, and that remand conferred upon the appellant the right to compliance with the instructions therein. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The instructions of this remand were to contact the Veteran and obtain appropriate authorization so that treatment records could be obtained from his primary care physician and arrange for a VA examination to determine the current severity of the service-connected foot disabilities at issue. The claims file documents a letter mailed by the AMC to the Veteran in January 2013 with the appropriate authorization form to obtain any relevant private treatment reports, with no response received from the Veteran in this regard. The Veteran was also afforded the requested VA foot examination that, as noted above, was conducted in February 2013 and accompanied by May 2013 addendum by the examiner who conducted this examination. These reports reflect compliance with the requests of the January 2013 remand, to include, as requested therein, a discussion in the May 2013 addendum of the discrepancies between the examiner's February 2013 findings and those made by a physician in October 2012. As such, the Board finds that there has been substantial compliance with its remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). There is no indication in the record that additional evidence relevant to the issues decided herein is available and not part of the claims file. See Pelegrini, 18 Vet. App. at 121-22. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486. As such, the Board may proceed to adjudication of this appeal. II. Factual Background, Legal Criteria, and Analysis The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file, with an emphasis on the evidence relevant to this appeal. Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In Fenderson v. West, 12 Vet. App. 119(1999), it was held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. Compare Francisco v. Brown, 7 Vet. App. 55, 58 (1994) [where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern]. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability. DC 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Full ankle dorsiflexion is to 20 degrees and full plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II. Under DC 5276, mild flatfoot with symptoms relieved by built-up shoe or arch support is assigned a noncompensable (0 percent) rating. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated as 20 percent disabling for unilateral disability and 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the Achilles tendon on manipulation, that is not improved by orthopedic shoes or appliances, is rated 30 percent disabling for unilateral disability, and 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Words such as "mild, "moderate," "severe," and "pronounced" are not defined in the Rating Schedule or in the regulations. Consequently, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Pursuant to DC 5280, unilateral hallux valgus will be assigned a maximum 10 percent rating if it is severe, equivalent to amputation of the toe. The maximum 10 percent rating will also be assigned if the Veteran underwent an operation with resection of the metatarsal head. Under DC 5282, a noncompensable rating is warranted for hammertoe of single toes. The maximum 10 percent rating is assigned when there is hammertoe of all toes of the foot without claw foot. 38 C.F.R. § 4.71a, DC 5282. Summarizing the pertinent facts with the above criteria in mind, a January 2011 private clinical report noted that the Veteran had an arthritis deformity of the right foot as sequelae of a fusion of the service connected right knee disability. Thereafter, a VA physician opined following a March 2011 VA examination that the Veteran developed arthritis, hallux valgus, hammer toe (involving digits two, three, and four of the right foot as shown at this examination), and pain in the right foot as a result of an altered gait caused by the service connected fusion of the right knee, and that it was at least as likely as not that such disability was etiologically related to service-connected right knee disability. Based on the evidence as summarized above, a March 2011 rating decision granted service connection for pes planus of the right foot with degenerative changes, right foot hallux valgus, and hammer toes of digits two, three, and four of the right foot as secondary to the service right knee disability. Non-compensable ratings, each effective from the date of claim of February 3, 2011, were assigned for pes planus of the right foot with degenerative changes, right foot hallux valgus, and hammer toes of digits two, three, and four under DCs 5276, 5280, and 5282, respectively. Pertinent to the ratings assigned by the March 2011 rating decision are the symptoms and clinical findings from the aforementioned March 2011 VA examination, at which time the Veteran described right foot pan, mostly in the second, third, an fourth toes. It was noted that the Veteran had opened up his shoe on top of his toes due to pressure on the toes from the shoe that made it painful and "unbearable" to stand and walk. He reported that he was not taking any medication for the pain or using any assistive devices and the Veteran reported that he had pain on standing and walking, mostly on the toes. The Veteran denied having any weakness or fatigue associated with the his right foot disability and reported no pain when at rest. Upon physical examination in March 2011, the Veteran was able to stand from his chair without using his hands and movement on the examining table was accomplished with ease. He walked with a limp with the right knee in extension. When barefoot, the Veteran was noted to be flatfooted with the first toe and second toe of the right foot separating from each other and the second toe separated from the third, fourth, and fifth toes as he walked. As noted, there was hammer toe involving digits two, three, and four digits of the right foot. There was tenderness to palpation of digits two, three, and four of the right foot with no tenderness on the big toe. There was mild hallux valgus of the right big toe and pes planus with mid arch collapse. The Achilles tendon was non-tender at six degree valgus and there was no tenderness over the metatarsal heads, heel, or longitudinal arch. The longitudinal arch was in pronation and there was no abnormal callus formation. Motion in the right foot was to 20 degrees of dorsiflexion and 45 degrees of plantar flexion, or full motion as set forth at 38 C.F.R. § 4.71, Plate II. Repetitive motion testing resulted in no change in active or passive motion, weakness, or impaired endurance, incoordination, or instability. An x-ray of the right foot revealed borderline hallux valgus at 16 degrees, mild degenerative changes, and pes planus with a calcaneal rise measuring 12 degrees. Following the examination, the diagnoses pertinent to the right foot were pes planus with degenerative changes, borderline hallux valgus, mid lateral subluxation of the great toe at the base of the proximal phalanx, and hammer toes of digits two, three, and four with no limitation of motion but an abnormal gait with splaying of the toes between digits one and two and two and three with walking. Thereafter, the evidence includes reports from a VA "Flatfoot (Pes Planus) Disability Benefits Questionnaire" completed by a physician on October 8, 2012 and received in December 2012. (Also received in December 2012 were color photographs demonstrating the disability in the right foot). This report noted that the Veteran had pain in the right foot accentuated on use as well as pain on manipulation of this foot. The right foot was also said on this report to result in swelling on use and characteristic calluses. Symptoms were said to not be relieved by arch supports or built up shoes or orthotics. Tenderness was said to not have been improved with orthopedic shoes or appliances but the Veteran was said to not have extreme tenderness of the plantar surface. Additional findings in the right foot as reported on the October 2012 questionnaire were a decreased longitudinal arch height on weight bearing; objective evidence of marked deformity (pronation/abduction et.); and a weight-bearing line that fell medial to the great toe. The right foot was said to not have inward bowing of the Achilles tendon or marked inward displacement with severe spasm of the Achilles tendon on manipulation. The physician noted that it was not the case that the Veteran's flatfoot resulted in functional impairment such that no effective functioning remained other than that which would be equally well served by an amputation with prosthesis but that this condition did affect his ability to work. Also completed by a physician on October 8, 2012, was a VA "Foot Miscellaneous (Other than Flatfoot/Pes Planus) Disability Benefits Questionnaire" that noted that the Veteran had hammer toes, hallux valgus, and (after previously noting therein that the condition did not exist) hallux rigidus. It was noted that there was not a Morton's neuroma or metatarsalgia. The physician indicated that the hallux valgus and hallux rigidus resulted in "severe" symptoms with functioning equivalent to that which would have resulted from an amputation of the great toe. This report indicated the Veteran did not have claw foot or malunion or nonunion of the tarsal or metatarsal bones but that he did have a "severe" foot injury due to arthritis and chronic pain resulting from an abnormal gait caused by the service connected right knee disability. The Veteran was said to not use assistive devices as a normal mode of locomotion, and the examiner stated that the foot disability addressed in this questionnaire did not result in functional impairment such that no effective functioning remained other than that which would be equally well served by an amputation with prosthesis but that such disability did affect his ability to work. At a February 2013 VA examination, the Veteran described "constant" right foot pain with average pain of 6-8 on scale of 1 to 10. The Veteran indicated that there was pain in the foot while he was at rest, especially at the second and third toes, and that pain worsened with standing and walking. He also described pain with touch over the right great and second toes and when walking on hard surfaces. The Veteran reported that he uses a grocery cart to hold on to when he goes shopping. Pain accentuated on use and manipulation of the right foot was described as was swelling on use. Characteristic calluses were not reported but the symptoms were said not be relieved by built-up shoes or orthotics. The Veteran was said to not use assistive devices as a normal mode of locomotion due to pes planus and it was indicated that the Veteran's pes planus did not result in functional impairment such that no effective functioning remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the Veteran's flatfoot condition did affect his ability to work due to pain with standing and walking. Another portion of the examination conducted in February 2013 devoted to foot disability other than pes planus noted that the Veteran had hammer toes and hallux valgus but no Morton's neuroma, metatarsalgia, hallux rigidus, claw foot, malunion/nonunion of the tarsal/metatarsal bone, and no other foot injuries or conditions. The hammer toes were again said to involve the second, third, and fourth toes of the right foot. No symptoms were said to be associated with the Veteran's hallux valgus. The Veteran was not said to have a weak foot. The Veteran was said to not use assistive devices as a normal mode of locomotion and it was indicated that the Veteran's foot disability not attributable to pes planus did not result in functional impairment such that no effective functioning remained other than that which would be equally well served by an amputation with prosthesis. The examiner noted that the foot disability not attributable to pes planus at issue did affect work due to pain with standing and walking. With comparison of the findings from the March 2011 VA examination, the examiner noted that in addition to such findings demonstrated at that time, the Veteran also had clinical findings of calluses on the dorsal aspect of the right second, third, and fourth toes due to pressure placed on these toes by his shoes due to his hammertoes. In her April 2013 addendum, the examiner noted that the only discrepancy between the findings pertaining to pes planus contained in the October 2012 questionnaire from those demonstrated at her April 2013 VA examination was that she did not observe any characteristic calluses. As for the portion of her examination devoted to foot disability other than pes planus, the only pertinent discrepancy noted was that she saw no symptoms related to hallux valgus and that she did not observe hallux rigidus at her examination. Applying the pertinent rating criteria to the facts set forth above, the Board notes initially that in its May 2013 rating decision increasing the rating for pes planus with degenerative changes of the right foot prior to 30 percent and the rating for hallux valgus of the right foot to 10 percent, the effective date chosen for these increases of October 8, 2012, was the date of the questionnaires completed by a physician as set forth above. Addressing first whether a compensable rating for pes planus with degenerative changes of the right foot may have been assigned prior to October 8, 2012, from review of the evidence during the period prior to October 8, 2012, (principally the findings from the March 2011 VA examination), it is not shown that the service connected pes planus with degenerative changes of the right foot resulted in "moderate" flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the Achilles tendon, or pain on manipulation and use of the feet prior to October 8, 2012. As such, a 10 percent rating prior to October 8, 2012, could not have been assigned under DC 5276. It was also not demonstrated prior to October 8, 2012, that there was "severe flatfoot," with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use or characteristic callosities. Therefore, a 20 percent rating prior to October 8, 2012, could not have been assigned under DC 5276. As for whether a 30 percent rating could have been assigned under DC 5276 prior to October 8, 2012, such a rating would have required "pronounced" disability, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the Achilles tendon on manipulation that was not improved by orthopedic shoes or appliances. In this case, it was not until the October 8, 2012, questionnaire that marked pronation, said not to be relieved by orthopedic shoes or appliances, was shown so as to warrant a 30 percent rating under DC 5276. As the highest rating for unilateral pes planus under DC 5276 is 30 percent, and the service connected disability only involves pes planus of the right foot, a rating in excess of 30 percent for pes planus with degenerative changes of the right foot for the period from October 8, 2012, cannot be assigned under DC 5276. Review of the remaining diagnostic codes potentially applicable to the Veteran's pes planus with degenerative changes of the right foot do not reveal a provision under which a compensable rating may have been assigned for such disability prior to October 8, 2012. In this regard, as the motion in the right foot was shown to be full at the March 2011 VA examination, a compensable rating under a diagnostic code such as DC 5284 ("other" foot injuries) would not have been warranted prior to October 8, 2012, on the basis of limitation of motion due to arthritis. As the highest assignable rating under DC 5284 is 30 percent, a rating in excess of 30 percent from October 8, 2012, could also not be assigned under this provision, and there is otherwise no diagnostic code pertaining to foot disabilities which provides for a rating in excess of 30 percent for a unilateral foot disability. Turning now to the issue of whether a compensable rating may have been assigned for the hallux valgus of the right foot prior to October 8, 2012, under DC 5280, such a rating would have required "severe" disability, equivalent to that which would result from amputation of the toe prior to October 8, 2012. The March 2011 VA examination only descried the hallux valgus as "mild" and the x-ray conducted in conjunction with this examination showed that there was "borderline" hallux valgus. It was not until the October 2012 questionnaire that the hallux valgus deformity was described as resulting in "severe" symptoms with functioning equivalent to that which would have resulted from an amputation of the great toe. Therefore, the Board finds that a compensable rating may not be assigned for hallux valgus of the right foot under DC 5280 prior to October 8, 2012. As the highest assignable rating under DC 5280 is 10 percent, a rating in excess of 10 percent for hallux valgus for the period from DC 5280 may not be assigned. [With regard to hallux rigidus, as this was one of the discrepancies noted by the VA examiner in her April 2013 addendum in that the condition was not shown at her examination while it was referenced in the October 2012 questionnaire, as hallux rigidus was also not demonstrated at the March 2011 VA examination, the Board finds the preponderance of the evidence to be against entitlement to compensation for hallux rigidus under DC 5281.] Finally with regard to hammertoes, at no time during the appeal period has it been demonstrated, or alleged, that hammertoes involve all the toes of the right foot. Therefor, a compensable rating for hammertoes of digits two, there, and four of the right foot is not warranted under DC 5282 at any time during the appeal period. With regard to giving proper consideration to the effects of pain in assigning a disability rating, as well as the provisions of 38 C.F.R. § 4.45 and the holdings in DeLuca and Mitchell, supra, the clinical record reflects consideration of these principles, and there is no indication that increased compensation would be warranted under these principles for any of the conditions at issue. In short and based on the analysis above, the rating criteria for a compensable evaluation for pes planus with degenerative changes of the right foot prior to October 8, 2012, and in excess of 30 percent from that date; a compensable initial rating for hallux valgus of the right foot prior to October 8, 2012, and in excess of 10 percent from that date; and a compensable initial rating for hammer toes of digits two, there, and four of the right foot are not met. 38 C.F.R. § 4.71a, DCs 5276, 5280, 5282. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected disabilities at issue and notes that his lay testimony is competent to describe certain symptoms associated with these disabilities. The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and have been contemplated by the disability ratings that have been assigned. Moreover, the competent medical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disabilities at issue. As such, while the Board accepts the Veteran's testimony with regard to the matters he is competent to address, the Board relies upon the competent medical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected conditions at issue. The Board has also contemplated whether the case should be referred for extra-schedular consideration for the disabilities at issue. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected disabilities at issue with the established criteria found in the rating schedule. The Board finds that the disabilities at issue are fully addressed by the rating criteria under which each such disability is rated. In this regard, the specific diagnostic criteria adequately address the whole of the Veteran's symptoms referable to his service-connected foot disabilities. There are no additional symptoms of the service-connected disabilities at issue. In this regard, a wide range of signs and symptoms are contemplated in the applicable rating criteria for the Veteran's foot disabilities. At least some portion of these disabilities require application of the holding in Deluca, supra, and Mitchell, supra, which, in turn, requires consideration of 38 C.F.R. §§ 4.40 and 4.45. 38 C.F.R. § 4.40 requires consideration of functional loss, including the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, pain, weakness, and atrophy. Likewise, 38 C.F.R. § 4.45 requires consideration of, in part, incoordination, impaired ability to execute skilled movements, painful motion, swelling, deformity, disuse atrophy, instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing. Also, 38 C.F.R. § 4.59 requires consideration of such matters as unstable or mal-aligned joints, and crepitation as well as any painful arthritic motion. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disabilities addressed above. As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating for either of the service-connected disabilities addressed above is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). "Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities." Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc). Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not. Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13). Stated in other terms, an extraschedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue. ORDER Entitlement to a compensable initial rating for pes planus with degenerative changes of the right foot prior to October 8, 2012, and in excess of 30 percent from that date is denied. Entitlement to a compensable initial rating for hallux valgus of the right foot prior to October 8, 2012, and in excess of 10 percent from that date is denied. Entitlement to a compensable initial rating for hammer toes of digits two, there, and four of the right foot is denied. REMAND With respect to the issue of TDIU, the October 2012 questionnaire and February 2013 VA examination noted that the service connected foot disabiities affect the Veteran's ability to work. As such, these reports raise a claim for TDIU as a component of Veteran's claims for entitlement to higher ratings for his service connected foot disabilities on appeal. See Rice, 22 Vet. App. at 447. The Board notes that the RO has not meaningfully considered the Veteran's entitlement to a TDIU. Therefore, after giving the Veteran an opportunity to file a formal claim for TDIU, the RO should fully adjudicate this matter, in the first instance, to avoid any prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Furnish to the Veteran a VA Form 21-8940 to enable him to file a formal application for TDIU due to his service-connected foot disabilities and provide the Veteran with the appropriate notice for claims for TDIU required by the VCAA. 2. After completing the requested action above, and any additional notification and/or development deemed warranted with respect to the claim, adjudicate the claim for an increased rating for TDIU due to the service connected foot disabilities. If this benefit is denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes citation to and discussion of all additional legal authority considered, along with clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs